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State v. Capps

Court of Appeals of Ohio, Fifth District, Coshocton

March 26, 2018

STATE OF OHIO Plaintiff-Appellee
v.
CODY D. CAPPS Defendant-Appellant

          Appeal from Coshocton County Municipal Court, Case No. TRC 1700462 A & B

          For Plaintiff-Appellee RICHARD J. SKELTON.

          For Defendant-Appellant ROBERT E. WEIR.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, EARLE, J.

         {¶ 1} Defendant-Appellant Cody D. Capps appeals the judgement of conviction entered by the Coshocton Municipal Court, Coshocton County Ohio, finding appellant guilty of operating a vehicle under the influence and a violation of lanes of travel. Plaintiff-Appellee is the State of Ohio.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} On February 23, 2017, at approximately 2:00 a.m., the Coshocton County Sherriff's Department received a report of a reckless driver in a blue Honda on Route 16. Deputy Brandon Elson was dispatched to the area and located the vehicle. He followed the driver for two miles and observed several lane violations. The last observed violation involved both passenger side tires crossing completely over the fog line. Elson thus initiated a traffic stop.

         {¶ 3} Upon approaching the vehicle, Elson made contact with appellant and noticed he was fidgety, nervous and confused. Elson further noted appellant was trying to hide something in the center console. Appellant stated he was going home from work and had not been drinking.

         {¶ 4} Based on these observations Elson administered field sobriety tests. On the horizontal gaze nystagmus, appellant exhibited six of six clues. On the vertical nystagmus appellant exhibited no clues. Elson also had appellant preform a one-legged stand and walk and turn. Appellant exhibited three or four clues on the former and five for the latter. Elson placed appellant under arrest for driving under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a). Appellant was further cited for failure to drive in marked lanes in violation of R.C. 4511.33(A)(1).

         {¶ 5} Elson obtained appellant's permission to search the car. He found a rolled up dollar bill with white powder on it, a prescription bottle containing a few tablets of Suboxone, which is a brand name for Buprenorphine, an opioid medication. Two half tablets of Suboxone were found on the floorboard along with numerous empty blister packs of Coricidin, an over-the-counter cold remedy.

         {¶ 6} Appellant told Elson he was prescribed Suboxone for opioid addiction and was to take one and a half pills daily. Appellant's prescription for 45 tablets had been filled the week before, yet he only had two tablets remaining. Appellant further told Elson he would crush the tablets and put them under his tongue or snort them.

         {¶ 7} Appellant later submitted to a urine screen which was positive for Buprenorphine.

         {¶ 8} On June 28, 2017, appellant elected to proceed to a trial to the court. After hearing the evidence, the trial court found appellant guilty of OVI and failure to travel in marked lanes. Appellant's sentence included a period of probation, a fine and a one ...


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